Senate debates

Monday, 11 September 2023


Consideration of Legislation

10:17 am

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | Hansard source

I rise to provide support to my colleague Senator Cash in relation to the comments that she made on the two bills. These are very important matters. I sat on the Senator Legal and Constitutional Affairs Legislation Committee, as did Senator Waters, in the inquiry into the provisions of the Family Law Amendment Bill 2023. I also participated in the inquiry into the provisions of the Family Law Amendment (Information Sharing) Bill 2023.

I think the government and, indeed, crossbenchers and everyone in this chamber should reflect upon whether or not there is a pathway by which some reasonable amendments can be made to these bills, particularly the Family Law Amendment Bill. I think there is a pathway where the bill could be enhanced and meet the objectives of the government, and probably everyone in this chamber, in making sure that the best interests and safety of the child are paramount when people are going through the separation processes. This would also send a message to the community.

I went back and had a look at the tremendous report that was prepared on a bipartisan basis by Kay Hull AO when she was in the other place. It was absolutely inspirational to see members across all chambers and all parties come together and propose recommendations that were reflected in the Family Law Act on a unanimous basis, which I think considerably enhanced the legislation and, perhaps most importantly, provided guideposts or signposts to people in the community with respect to our underlying intention as a legislature. What concerns me at the moment in relation to this bill is that there are so many provisions being taken out of this bill, especially in relation to principles and objectives—and I'll be talking about that later—that I think it's sending the wrong message to people in the community. Having read the explanatory memorandum for the Family Law Amendment Bill, I think everyone is largely on the same page. But the drafting of the amendment bill doesn't get there; it doesn't achieve that. And I think it is going to cause disquiet in the community around the messages that are being given through the drafting, which I suspect are not intended by the government.

To those listening to this debate, let me give you just one example. One of the best-interests considerations in terms of the making of parenting orders et cetera is in relation to 'the benefit to the child of being able to have a relationship with the child's parents'. That's non-controversial. Obviously there are safety considerations that need to be considered and there are recommendations that the committee made with respect to the need to consider family violence orders in the past, abuse and neglect in the past, and absolutely those things need to be considered. But many stakeholders raised the issue about 'the benefit to child of being able to have a relationship with the child's parents', as the government proposes. The government has removed the word 'meaningful' from before the word 'relationship'. Why? Why remove that word? So many stakeholders, with the Law Council of Australia at the head of the queue—the experts—and many of the family law practitioners experts are saying, do not remove the word 'meaningful' before 'relationship', because the term 'meaningful relationship' has been the subject of many cases and much deliberation. Practitioners know what it means.

And it's not just about practitioners. Only three per cent of matters dealing with parenting orders actually end up in the court itself; 97 per cent of these matters are resolved by parents and families as they're dealing with the separation issues. We should be doing everything we can in this place to make it easier, not harder, for families to resolve these issues without going through the court process and incurring debilitating legal expenses. We should be making that easier. In order for us to that, there need to be some signposts, some guidance contained in the amending bill with respect to what is intended. This is a perfect example. Why not say 'the benefit to the child of being able to have a meaningful relationship with the child's parents', as opposed to just saying 'being able to have a relationship'? Why take out that word 'meaningful'? What message are you intending?

I don't think you're intending to give any message to people by removing that word. But I think it's an example of where the drafting needs further consideration, when reasonable concerns are raised, not just by Senator Scarr but also by the Law Council of Australia and law practitioners associations across the country, from Western Australia to the Hunter Valley to Queensland, saying, please retain that word 'meaningful'. It is not going to impede the government's reform process with respect to the legislation. I agree with the basis of the reform process. The Family Law Act, in terms of parenting orders, is too complicated. It is acting as a hindrance in relation to dealing with matters, especially on an interim basis. But why change a phrase from 'meaningful relationship' with both parents to just 'relationship'?

So I ask, especially those sitting on the other side of the chamber, to consider these issues. I compliment the Attorney-General's Department on the speed with which they turned around questions on notice et cetera in relation to the matters. We worked very diligently to a very tight timetable. The hearing was on a Friday and then the report was tabled two weeks later—a very tight timetable dealing with very complicated issues. I genuinely believe there is a real opportunity to enhance the drafting of this legislation and get a better result and send the right message to Australian families all over this country.

So I really do commend Senator Cash for her comments and I exhort all of us in this chamber to reflect on how we can improve this legislation, because it's so important. There is nothing more important than dealing with these sorts of issues.

Question agreed to.


No comments